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(g) Further, the delays and defaults attributed to HDIL were occasioned not by anything it did, but by defaults on the part of the Respondents. A fixed slum rehabilitation policy was the substratum of the entire 13 of 69 APP(L)365-13-F exercise. Failing to evolve and fix with finality such a policy, or making frequent changes to an existing policy or policies, had the effect of undermining not only the project but also jeopardizing HDIL's prospects of fulfilling its contractual obligations. The record, Mr. Kapadia submits, shows that this is not a case of changes in any slum rehabilitation policy; no such policy was ever framed; and, without that policy being in place, the entire Slum Rehabilitation Contract was stymied. It was not a matter of shifting goal posts so much as not having a goal post at all. Alternatively, if a slum rehabilitation policy could be said to have existed, it was in constant flux, making performance impossible, for the Slum Rehabilitation Contract's success depended on a policy that was immutable.

45 of 69 APP(L)365-13-F obligations under the Slum Rehabilitation Contract because of these changes. Indeed, HDIL's express statement that it is unable to fulfil its contractual obligations seems to us to very much put paid to any case of externalities rendering performance impossible. Even more telling is HDIL's unequivocal assertion that it is "not in a position to carry out its obligations" under the Slum Rehabilitation Contract.

VII

36. Claiming breaches by MIAL and what it describes as a "total failure of support" by the other agencies, HDIL then invokes the force majeure clause of the Slum Rehabilitation Contract. 24 This is a clause very much of the usual kind found in many contracts. It sets Bharat Barrel & Drum Manufacturing Co Pvt Ltd v Hindustan Petroleum Corporation Ltd & Ors., AIR 1989 Bom 170.

Clause 26 46 of 69 APP(L)365-13-F out various circumstances, each of which may constitute a casus fortuitus sufficient to free parties from the contract. Mr. Kapadia relies on one of these: a change in law or policy of any government that suspends or render performance impossible; 25 and it is his case that the changes in the slum rehabilitation policy constitute just such a change in law or policy. However, as we have seen, there is insufficient evidence that the changes in the slum rehabilitation policy, such as they were, rendered performance of the contract impossible or suspended the contract. They might have made it more onerous perhaps than HDIL had initially bargained for, but that is all. Mr. Kapadia claims that the Government's decision not to apply the existing policy till a new policy was framed was just such a change and it suspended the contract. In other words, according to Mr. Kapadia, HDIL was entitled to defer indefinitely performance of all its obligations pending a final, written-in-stone, slum rehabilitation policy by the government. This is clearly incorrect.

38. What is the kind of policy change clause 26.1(v) contemplates, in the context of the Slum Rehabilitation Contract? It might be, for instance, one that does away with all eligibility and simply permits the razing of all slums with no requirement of rehabilitation. Or it may be to permit in-situ rehabilitation. Either would oust the Slum Rehabilitation Contract completely and suspend it or render its performance impossible. That is not the kind of policy change that even HDIL describes. It is, in fact, common ground that the only policy changes, if any, were not to reduce the numbers of those eligible, but, if at all, to increase them, perhaps by, say, moving forward the datum line or altering certain criteria. This would not in any way suspend the Slum Rehabilitation Contract or render it impossible of performance. It would not reduce HDIL's scope of work. At best, HDIL would be required to do further work, for which it could then lay a claim for additional recompense. What HDIL seems to be saying is that unless the numbers of eligible Namely, the successful completion of Phase 1(i), 1(ii) and 28,000 hutments in Phase (1)(iii) as specified in Clause 4.2(a).